Wikimedia Upstream Surveillance Lawsuit Against NSA Thrown Out By Judge

A lawsuit brought by Wikimedia, the organization behind Wikipedia, was dismissed by a judge on the grounds that it was overly speculative, and that there was no way for Wikimedia to prove whether or not they were being spied upon.

Wikimedia is just one of the organizations represented by the ACLU (American Civil Liberties Union) which has claimed to be subject to unlawful upstream surveillance by the NSA. Others include Human Rights Watch and Amnesty International USA.

Amnesty International had a similar case dismissed in 2013, the case of Clapper V Amnesty International, in which it was again determined that the organization could not prove for sure that their communications were being placed under unlawful surveillance.

The Ruling In Favor of the NSA

US District Judge Richard D. Bennett gave a 30 page long ruling, finding in favor of the NSA. In this ruling, he said that it was impossible to be able to “plausibly establish that the NSA is using upstream surveillance.”

He stated in the document that the plaintiffs claims that they were being spied upon were ‘unpersuasive’, ‘riddled with assumptions’, and ‘incomplete’. While it could be proven that the NSA use upstream surveillance on certain chokepoints in internet communications, Bennett ruled that Wikimedia were unable to plausibly demonstrate that the NSA was copying their communications, and that this meant the case was based purely on speculation.

He also argued that Wikimedia’s statement that their internet communications, which stand at about three trillion a year, were a ‘significant volume’ was not valid, because there was no context to quantify it against. He said that while three trillion is obviously a big number, without context it is meaningless – three trillion dollars is significant, but three trillion grains of sand is “but a small patch of beach”, being the analogy he used.

The ACLU’s Response to the Dismissal

A lawyer for the ACLU, Patrick Tooney, said that the ruling by Judge Bennett ‘turns a blind eye’ to unlawful surveillance, and that there was in fact plenty of public evidence that the NSA was spying on the plaintiffs without warrant.

Jimmy Wales, one of the co-founders of Wikimedia, had stated in the spring that the Snowden documents had shown that the NSA’s actions were impacting his organization, and that he believed he had a strong case on his hands. This of course refers to the documentation leaked by the famous NSA whistleblower Edward Snowden, a former contractor with the agency.

Why Would Upstream Surveillance Be Against the Constitution?

The use of upstream surveillance to copy and monitor Wikimedia’s internet communications could be seen as being against both the first and fourth amendments – the first guaranteeing freedom of speech and the fourth protecting citizens from seizure and search without reason or warrant.

This case shows that it is clearly very difficult to prove sufficiently that an organization is being watched by the NSA, even if they have plenty of reason to believe that this is the case.